Judges Favor The Profane

For the second time this year, a federal court has ruled against Federal Communications Commission (FCC) and ruled in favor of shattering every barrier of decency on television. A few months ago, the Second Circuit Court of Appeals in New York ruled in favor of fleeting profanities thrown carelessly on network TV. Given that Hollywood could defend all profanities as "fleeting," that ruling opens the door for F-bombs galore, any time, anywhere.

Now, the Third Circuit in Philadelphia has ruled the same for fleeting nudity. Nothing is sacred on television -- except the profane.

The FCC's $550,000 fine against 27 CBS-owned stations for the infamous and deliberate Janet Jackson breast-baring during the halftime show of the 2004 Super Bowl is now reversed. The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience." That finding is beyond preposterous. What was not shocking about sudden nudity on the most watched television broadcast of the year, in front of an audience stuffed with millions of children?

But in effect, what the judges were saying is that since the Enforcement Bureau of the FCC has been a steady, ongoing farce of decency protection for 30 years, it must always and forever remain a joke. Would the public accept a ruling like this about other regulators, about air pollution or water pollution, instead of TV pollution?

In their ruling, the judges make absolutely no allowance for the fact that indecency on television has grown pervasive by leaps and bounds over the last thirty years. It's so pervasive that the shock is often dulled by the consistency of an increase in sex, violence and filthy language.

But the Janet Jackson incident was different. The audience was shocked, and the amount of protest was historic. The controversy surrounding the incident yielded a record-breaking 540,000 complaints to the FCC in the weeks following the game. Switchboards and mailboxes on Capitol Hill were overwhelmed with angry protests. One senator told me privately that no issue ever generated more constituent outrage than this -- and he didn't sit on any media oversight committee.

But the judges had the audacity to question the authenticity of the protesters. They sneered in print that "the record is unclear on the actual number of complaints received from unorganized, individual viewers" as opposed to advocacy groups. They took every complaint and shredded it and threw the confetti back in the public's face.